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it would provide postings of approval actions and inform the public on exactly how and when to file an appeal. the process is now in place is less clear to the public as it relies on many things. we have to look at board of the clerk procedures. there is a city attorney opinion letter. and every individual determination for an appeal if appropriate, is it timely, has to be reviewed by the city attorney for review by determination. important to the hpc in particular, the proposed procedures would change nothing about how historic resources are evaluated under see qualitiv so, there is some confusion as you heard about that. there would be -- the only change relative to historic resources would be a small change to the special noticing that happens to those who are on our preservation mailing list. and this notice for historic resources was amended in the recent version just last week so it would address the concern
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and provide notice for any city adopted service. so, that's kind of the big overview. now our senior environmental planner sarah jones is going to go through the memo that we handed out today. and there copies on the table for the public. if anyone needs an extra one, they can see us. >> could i ask a quick question to staff? there's references i'm reading in here, and you just mentioned there had been amendments made to the legislation that we have had before us, but we have not received. is that correct? >> that is correct. i would go run copies right now. i'm sorry for that. >> that's all right. we don't need to do that. >> there's one more clarification on your presentation. >> i just wanted -- i'm not sure if i understood this correctly. two things. you said that if one wanted to
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speak at a later e-i-r hearing, they had to have addressed the d-e-i-r hearing to speak at the later hearing? >> at the appeal hearing, that's correct. >> all right. that was one thing i wasn't clear about. and the other -- on negative declarations, it says there's no appeal to the board unless it first is appealed to the planning commission. i thought it was the other way around. it would be they appeal just to the board. but it has to first go to the planning commission. they can't directly much to the board for appeal? >> yes, if you're an appellant, you can appeal to the planning commission and then a again appeal later to the board. or some people choose to skip that and just appeal directly to the board of supervisors. it's more consistent with c-e-q-a to have the earlier appeal before this body, which is the acting body for the negative declarations, because then it's still in the draft stage and it's addressed earlier. c-e-q-a prefers to address issues earlier.
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>> i agree, because everything else in the c-e-q-a process comes first to the planning commission. and then it's appealed to the board in some cases. so, okay, thank you. >> thank you. >> good afternoon, president fong and members of the commission. my name is sarah jones,. i'm from the environmental planning division of the planning department. what i am doing today is giving a brief overview of the materials that you received this afternoon. those include a cover memo, some case studies on projects that were appealed. there were also appeals filed since 2010, a list of time frames -- a list of time frames for appeals as well as the department's responses to the comments that we've received thus far on the legislation. * results these materials were prepared in response to requests for
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information from commissioners. so, i'm mainly going to focus on the cover memo. what we did in that cover memo was broke down the proportion of time that the appeal process takes relative to other portions of the environmental review process for each major type of environmental document. this turned out, actually, to be a very helpful exercise for us because it really highlighted that the most problematic aspect of the current situation is the lack of predictability and clarity with regard to negative declaration and categorical exemption appeals. so, first for e-i-rs. under the proposed legislation, that wouldn't change much. e-i-rs take a small amount of time compared to the preparation process. the time lines are specified now in chapter 31. for negative declarations, that's where it starts to get a
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little hairy. the amount of time can be small or large as a proportion of the overall environmental review time, depending on the circumstances of the project and how that approval process goes. currently it is unpredictable how the appeal process would work. because the approval of the project, which is the trigger for a c-e-q-a appeal at the board, may not occur until a long time after the completion of the c-e-q-a document. the negative declaration only becomes ripe for appeal at approval. one correction to the information in the memo. after the approval an appeal must be filed with the board within 20 days. as mentioned previously, negative declarations can be appealed to the board of supervisors even if they were not appealed to the planning commission. overall, the rules surrounding negative declaration appeals are highly unclear.
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included in your tiersv is a case study of an appeal of an affordable housing project that this commission reviewed at 31 55 scott street. under the proposed provisions, the same appeals could occur, but the process would be both shorter and more efficient * . in the case of this project, this could have enabled the project sponsor to take better advantage of state funding cycles. as it is, construction has not yet begun on this project as a result of missing some funding cycles. the next category of environmental documents is categorical exemptions. again, this is a very large range of time, both in term of how long the environmental process takes and how long the appeal process can take as a proportion of that. but the appeals can be a very large proportion of the overall time and in some cases basically the entirety of the time. appeals can be filed after the
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first approval action on a project which can be a long time. again, after the exemption was issued. however, they can be filed until the last approval is final on a categorical exemption which extends the time even more. again, rules for cad ex owe peels are unclear and opaque as it stand to the public now. under the legislation, the rules will be clear, notice of appeals opportunities will be a should ieder and the appeal would occur with the first project approval. a case study is 2835 broderick street. again, that one came to the commission on discretionary review. in the proposed legislation, the c-e-q-a appeal would occur at the first approval action on the project. in other words the building permit. [speaker not understood] would occur six months earlier than it did and could have better informed the procedure that played out at the board of permit appeals.
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just a final point to reiterate before i turn this over to bill wyco. the unpredictable and nature of the appeal process now is [speaker not understood]. it would not be curtail of appeal rights. it would provide for greater predictability and greater clarity. now i'll turn it over to bill, our environmental review officer. thank you. >> commissioners, thank you. it's bill wyco. i'm going to start kind of at kind of a general level because this discussion is going to probably mire in details. get in the big picture first and plunge into a detail or two that you're going to hear in comments, you've seen in comment letters. big picture, all that this ordinance -- all that the existing ordinance does and all the proposed ordinance does is fill gaps in state law. state law does not address --
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state law was changed 10 years ago to allow an administrative appeal to the board -- to elected body if the elected body is the decision maker. we've had 10 years now of having no procedure in place. this is trying to establish a procedure. so, number one, it's addressing a gap in state law that did not establish procedures for such administrative appeals. secondly, it addresses a gap in state law specifically around exemptions regarding noticing. as ann marie stated, there is absolutely no requirement under state law for noticing exemptions. the noticing that we already have, either by ordinance or by practice goes way beyond anything that state law requires. what this does is aloe exceptionally try to address the fairness question in saying that since there is extensive noticing, it happens on many actions by the city, in particular extensive noticing by anything that this
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department does, that we want to maximize noticing through using existing noticing. in other words, if there is a notice that goes out regarding anything that involves a discretionary action that has c-e-q-a underlying it, that that notice would serve -- would tell people that there was an exception or whatever c-e-q-a action is taken and would serve notice that that process will be triggered by whatever the trigger is. in the case of negative declarations exemptions, the triggering action is an action on the discretionary permit. . e-i-rs are not going to change. this is filling a big gap in state law in terms of administering an appeals process and in terms of noticing. there is quite a bit of commentary which, i'll restrain from going too much into in term of where it's coming from,
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that suggests that somehow this proposal is being consistent with state law. it is restating state law in a couple instances. but since this is essentially gap-filling legislation, it is not going beyond or inconsistent with state law. * i think the issue that you are most likely to get confused about, whether by confusion of the speakers or by deliberate representation -- misrepresentations by the speakers, is this issue of substantial evidence. and without going into a long legal treatise, there's two ways in which the term substantial evidence is used in c-e-q-a. one is an evidencery standard. one is an appellate standard. * the way in which this is introduced in this legislation has to do with evidence and very simply, if you want to make a case for conclusion,
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whether you is the city or you is the appellant, you need to substantial evident to support it. that's all that this ordinance says. that's what the state statutes say, that's what the state guidelines say, that's what the statute says. it doesn't produce any permissible standard. the other way in which substantial evidence is used in c-e-q-a is as a standard of review. and in very simple terms, there's two basic standards. there's substantial evidence which is defresidential to a lead agency, it primarily applies to e-i-rs and addenda and infill exemptions. and there's fair argument which primarily applies to negative declarations. this does not addressing that. in fact, more broadly, this ordinance does not address the substance of how c-e-q-a is -- review is done or how c-e-q-a challenges are evaluated. this does not get into the nuts and bolts of how review is done.
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naturally improper under state law. it would be improper under state law for any local ordinance to state a standard of appellate review. naturally the place of the legislature or the courts if we were to put such standards in the ordinance, would -- basically we'd have to -- we'd be subject to having to change our local ordinance based on whatever happens in other jurisdictions. final point which i think has been made, and i won't go too long on this. most of this is about exemptions. if you look at the materials that have been compiled at commissioner sugaya's request, there is a compilation of appeals that have gone to the board. it's not fully complete because we got the request a couple days ago. either a period where there were some major e-i-rs that went to the board on appeal or went to the board in general for major land use plans, fully
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60% of the appeals are for exemptions. and exemptions, if you look at the tallies, you know, there's many long periods of gaps when the environmental document was prepared and when the appeal heard two years, year and a half, year, whatever. and that in most cases is a reflection of people waiting, they have exhausted all other avenues, waiting until there is a last permit, maximizing the delay, maximizing the cost, maximizing the uncertainty. that is what this legislation tries to deal with. i'm sure there will be other questions. thank you. >> thank you. is there any additional staff presentation? okay. we're going to go ahead and open up to public comment now. and i'll call some names. since we have so many speakers, maybe we can all line up on your right side of the room. and if you can wait till i call
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your name, that would be great. michael russum, jonathan goldberg. i'm really sorry, can't read this one. c-h-o-d-e-n. susan vaughan. george wooding. and tony getener. if your name has been called -- there you go, thanks. i'm going to again submit this, if you would. my name is bernard showed en. i'm with san francisco tomorrow. the issues that i raised are
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obligatory. [speaker not understood]. it is an obligation for your consideration. the problem is that c-e-q-a does not exist in an enforceable manner in the city of san francisco. it does not meet the mandates of professional and state mandates. there is no means of enforcing findings of the vacation needs as required by c-e-q-a. it is not simply and with good intention that we address c-e-q-a, but we address it in the extent it needs mitigation. we do not have the institution, resources, or planning expertise in evidence that regard affordability or habitability for the city's costs and the people who live here. it's not about beautification cumulatively.
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it is community, social equity. it's not just the cost to the developer, but the cost to the public that is entertained. if there were adequate research in mitigation and a condition of assessment of needs by a professional staff the public would not need to expensively respond. i bring in question park merced which i represent [speaker not understood], where 8900 people are at risk because of a lack of proper c-e-q-a analysis, a lack of assessment of affordability. and because supervisor wiener was called to account by the supervisors sunshine ordinance
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task force for a lack of allowing public comment after, in effect, supervisorial amendments were processed. he is repeatedly aware of abridging law and he's doing it again. thank you. >> next speaker, please. my name is michael russem, i'm a member of the park merced action coalition and a resident in the garden apartments there. i am totally opposed to supervisor wiener's attempt to curtail the rights of citizens such as myself and my family to be adequately notified of threats to our well-being, to be heard about our objections [speaker not understood], and to be franchised in a democratic process. c-e-q-a has assisted that would allow us to have some say about developments that would harm us. the demolition of my home in
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park merced, the loss of our open space, trees, and safe play areas for our children the homes of 5,000 working citizens; my neighbors is in need of protection. supervisor wiener was already found guilty of misconduct by the sunshine ordinance task force railroading demolition of state law. he was referred to the ethics committee and to the district attorney. supervisor wiener, there you go again. you would create an unbelievable obstacle to our democratic participation. we may never know about the next bad development coming our way with 20 to 30 days' notice. most of the citizens in park merced don't follow these developments as carefully or quickly given their disabilities, their age, the demands on them. we may never know about the next development coming our
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way. there will belittle or no time to be involved in protecting ourselves. not the years of engagement we have had to help shape solutions that meet our needs. we were able to show that promises to keep rent control are unfounded and legal precedent. mitigation for our losses were provided, guaranteed or not, and we would have little ability to hire lawyers, to pay for them, and to pursue redress for our grievances under this horrible proposal. this proposal would really disenfranchise citizens like me from very, very serious effects on our lives. it's a terrible proposal. it must be quashed. thank you. good afternoon, commissioners. my name is jonathan goldberg and i'm here with san francisco beautiful. we commend supervisor wiener's efforts to codify the administrative procedures recommended and found workable by the planning department. however, we are concerned with
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limiting the time frame with which projects can be reviewed and appealed. pleased with with the commission's [speaker not understood] to review proposed [speaker not understood]. thank you. >> thank you. good afternoon, commissioners. my name is george [speaker not understood]. i want to start first with thanks for letting me speak. i think it is incumbent. scott wiener proves that the c-e-q-a policy is really being abused. i heard [speaker not
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understood] about the lafayette park in the testimony. i'm not even sure that had anything to do with c-e-q-a. i came in to talk today about the amendments to replace the fair argument standard with substantial evidence standard to determine when a project may have a significant attack on the environment. under the current ordinances, the [speaker not understood] must decide whether the project may have a significant effect on the environment based on a fair argument standard. [speaker not understood] code 31.1. the proposed amendment eliminates all references to the fair argument standard and adopts a new substantial evidence legal standard for the city's c-e-q-a purposes. the fair argument standard is another standard than substantial evident. under california statute, the city must create an e-i-r when a project may have a
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significant effect upon the environment. the legal standard in question is an interpretation of may. accordingly, it is likely more projects would require an e-i-r under the fair standard -- fair argument standard and pier project would require an e-i-r under the substantial evidence standard. more over, california case law has consistently adopted the fair argument standard when interpreting whether the project may have a significant effect on the environment. thus it is unclear whether the city of san francisco has the authority to change the legal standard used under state law. thank you. >> thank you. go ahead, next speaker. i'll call a couple more names to get ready. howard wong, judy berkowitz, arthur feinstein. rose brass. rose hill son. tess will born.
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good afternoon, commissioners. mienname is sue vaughan. i'm with the sierra club. i'm asking you to vote against legislation amending local application of c-e-q-a. quite simply the legislation was put together without widespread public notification or input. * from san francisco residents . there are some serious issues that are going to take time for people like myself. i'm not a lawyer, to get my head around. and we need to have that time. the sierra club was not notified about this. we stumbled upon it. we deal with this kind of thing all the time. we were not invited. we were not a stakeholder. i am with the sierra club. one public notification about projects which the legislation proposes to significantly restrict regarding negative declarations. that's been restricted in this legislation. two, the window of opportunity in which san francisco residents can watch appeals of
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problem projects the america's cup which legislation proposes to reduce to within 20 days of the first approval by any agency. three, and almost complete elimination of the opportunity for san francisco residents to appeal projects to the board of supervisors. and four, its potential illegality in changing from the fair standard to the substantial evidence. thank you so much. commissioners, good afternoon. my name is tony getener. lame duck holiday legislation is presumptively suspect. more over, this proposed evidence is putting the cart before the horse. as a state legislature, we'll be taking up changes to c-e-q-a next year. it would be more logical to wait on those changes, including the filling of gaps in state law before proceeding here.
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while streamlining c-e-q-a may seem like an attractive concept, it is not so when in effect it is a trojan horse. as i understand it, for example, the public will be denied the right to a hearing before the full board of supervisors on the inadequacy of a new e-i-r if a project requires any approval action by the board. as earlier noted, the ordinance deletes the fair argument standard as the basis for determining whether an e-i-r is required and replaces it throughout with a substantial evidence standard. i believe this renders the proposed legislation fatally flawed despite what the city attorney may opine as 30 years of legal [speaker not understood] requiring the fair argument standard. timelines for filing appeals to c-e-q-a determinations are confusing. there is no way for the public to know with any certainty when or if time limits are triggered. the proposed amendments believed [speaker not
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understood] given this commission discretion longer period for comments on an e-i-r of exceptional size or complexity. also, new requirements for filing an appeal with the board of supervisors are burdensome and unreasonable. there are other concerns as well. this legislation should be continued to 2013 after resolution of proposed c-e-q-a changes in sacramento. compassion for the environment is as compassion for our fellow human beings. thank you for your time. >> thank you. howard wong. as acknowledged by supervisor wiener and the city planning staff, this is complex, difficult to understand even for architects as myself or planning commissionerses like yourselves. and yet the proposal initially was to have a hearing here on
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november 15th, a land use committee hearing on the 19th, and a board hearing on the 20th right before the thanksgiving holidays. * without any stakeholder participation, or, frankly, notification of a wide nature to the general population. this was similar to the attempt that c-e-q-a legislation in 2006 and 2010 in this city. it was also similar to the august 2012 attempt to introduce c-e-q-a legislation in sacramento state legislature in the last two weeks of its legislative session. in sacramento, the state senator tabled the item and promised in 2013 there would be a collaborative effort to review c-e-q-a. on november 1st there was a
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spur and business association sponsored bus tour in san francisco with state senator michael rubio in an attempt to introduce different parts of our community to some of the issues of c-e-q-a by visiting projects which had some c-e-q-a problems. and with the acknowledgment that all the stakeholders would be brought to the table to review the issues and collaborate and come up with some mutually agreeable changes. but in reality as an architect having worked on large major projects and programs like the candlestick park renovations or youth guidance center renovationses or airport projects or muni railway projects, and as you have seen on any project that comes before you, there is a very detailed critical

November 29, 2012 4:00pm-4:30pm PST

TOPIC FREQUENCY San Francisco 8, Wiener 6, Sacramento 3, Howard Wong 2, Sarah Jones 2, Jonathan Goldberg 2, Tony Getener 2, Wyco 2, California 2, Ann Marie 1, Susan Vaughan 1, George Wooding 1, Scott Wiener 1, Michael Russem 1, Michael Russum 1, Sugaya 1, Broderick 1, Park Merced 1, Lafayette 1, Secondly 1
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